2022 QCCA 554, 2022 QCCA 554

Litwin c. Correa 2022 QCCA 554 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029567-211 ( 500-11-050741-160 ) MINUTES OF HEARING DATE: April 20, 2022 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. APPELLANT COUNSEL Michael Litwin Mtre DMITRY OPPENGEYM M tre samuel cohen ( Services Juridiques Samuel Cohen ) By videoconference RESPONDENT COUNSEL Gavin Correa Mtre ÉRIC POTVIN ( Paquette & Associés Avocats ) By videoconference IMPLEADED PARTY LITWIN CORREA ABSENT AND UNREPRESENTED INTERVENER COUNSEL BAKER TILLY MONTRÉAL, S.E.N.C.R.L. / L.L.P. Mtre Howard L.

Tatner By videoconference DESCRIPTION: Declaration of intervention in appeal, application to rectify clerical errors in the trial judgment, application to continue the legal proceedings pending appeal (Art. 49, 185, 338, 355, 378, 657 and 661 C.C.P. ) .

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:18 Commencement of the hearing. Identification of counsel. Preliminary remarks. 10:21 Submissions by Mtre Tatner. 10:35 Submissions by Mtre Oppengeym. 10 h 45 BY THE JUDGE: Judgment will be rendered in the minutes of the hearing and will be sent to the parties. Exchanges between the parties. Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicant, who was retained by both the appellant and the respondent to provide accounting services in the context of a dispute regarding the dissolution of the impleaded party, seeks leave to intervene in this appeal proceeding. [ 2 ] The judgment under appeal includes an order, which is not challenged in the appeal, directing the appellant to pay the applicant’s fees in relation to a supplemental report it prepared in the fall of 2020. [ 3 ] Alleging that those fees — of approximately $30,000 — had not yet been paid, the applicant filed before the Superior Court a declaration of voluntary intervention seeking two orders.

The first is for the correction of clerical errors in the operative part of the judgment regarding its name as well as the date when its supplemental report was prepared (article 338 C.C.P. ). The second is an order directing the appellant to pay its outstanding fees within 10 days (article 657 C.C.P. ). [ 4 ] The applicant presented its declaration of voluntary intervention to the judge who rendered the judgment under appeal. However, he refused to hear the application on the ground that he was functus officio as a result of the appeal proceeding.

He added that, as far as he was concerned, nothing prevented the applicant from presenting its declaration of voluntary intervention to another judge. [ 5 ] The applicant now seeks leave to intervene in this appeal proceeding and he clarified during the hearing that it does so primarily for the purpose of obtaining the provisional execution of the order made by the Superior Court in relation to its fees. The applicant adds that, without such an order,

article 355 C.C.P. para. 1 — which provides that a properly initiated appeal stays execution of the judgment — would likely prevent the Superior Court from making further orders aimed at allowing it to promptly obtain the benefit of the order directing the appellant to pay its fees. [ 6 ] Although the appellant had initially indicated that he intended to contest the application, his lawyer stated during the hearing that he did not object to an order providing for the partial provisional execution of the Superior Court judgment. [ 7 ] In these circumstances, I am of the view that the applicant ought to be allowed to intervene for this limited purpose and that the provisional execution of the relevant order of the Superior Court judgment ought to be ordered.

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] GRANTS in part the application for voluntary intervention; [ 9 ] ALLOWS the applicant to intervene in this appeal proceeding for the sole purpose of asking for the partial provisional execution of the judgment rendered by the Superior Court on May 14, 2021; [ 10 ] ORDERS the provisional execution of the following order made by the Superior Court on May 14, 2021:

« ORDONNE à Michael Litwin de payer les frais du complément d’expertise préparé par Bakerville engendrés à compter du 3 septembre 2021 jusqu’au dépôt de celle-ci le 27 novembre 2020. » [ 11 ] THE WHOLE , with legal costs. FRÉDÉRIC BACHAND, J.A.